Trustees and administrators of Ontario registered pension plans: beware of Form 7.

That’s the form that administrators of registered pension plans must complete, and send to their pension fund trustees, that summarizes the estimated employer and employee contributions that will be due to be made to the pension plans in future. The form must be provided by the registered administrator of every Ontario registered pension plan to the trustee, at least annually. If there’s a change to the estimated future pension contribution requirements, the administrator must send a revised Form 7 to the pension fund trustee within 60 days of becoming aware of the change.

Trustees of pension plans (which for this purpose include insurance companies) are not required to complete Form 7’s. But trustees have an important, independent legal obligation to notify the Ontario Superintendent of Financial Services if they do not receive the required Form 7. Further, if contributions to the pension plan are not received by the trustee in accordance with the estimates in the Form 7 received by the trustee, the trustee must notify the Superintendent. There are prescribed time limits for all of these requirements.

In essence, the Form 7 rules require pension fund trustees to police timely plan contributions. The law requires trustees to blow the whistle if a plan administrator is not making contributions on time.

In 2013 a trustee was prosecuted in Ontario for failing to report the non-filing of a Form 7 with respect to a plan administrator who eventually filed for bankruptcy protection from its creditors. The trustee plead guilty and was fined $50,000.

The gravity of compliance with Form 7 rules was recently emphasized by the Ontario pension regulator in an announcement that can be found here. A few days ago, the regulator released a revised Form 7 that can be found here, as well as a comprehensive User Guide that can be found here, to assist plan administrators in completing Form 7. It also released two new standardized templates, to be used by pension fund trustees to report to the Superintendent when a plan administrator fails to submit a Form 7, or fails to make the contributions as summarized in a Form 7. The templates can be found here.

Although Form 7 is a prescribed form, it does not have to be filed with the Ontario pension regulator. It is simply a required communication from plan administrators to pension fund trustees. Do not take this as an indication that the Ontario pension regulator is indifferent about compliance with the Form 7 rules. It has clearly demonstrated that it requires compliance, and it has provided a guide and templates to assist the pension industry with the rules.

If you are involved with the administration of an Ontario registered pension plan, you should familiarize yourself with new Ontario rules regarding pension advisory committees. The new rules will be effective January 1, 2017. They give significant additional rights to plan members, and could impose extra costs and administrative burdens on plan administrators. You can find the new rules here: Ontario Pension Advisory Committee Rules

I wrote about these new rules a few weeks ago, when draft regulations were released by the Ontario government. The regulations are now final and are described in my article here: Pension Article

It is possible that these new rules will have no impact on your plan. If unions and plan members take no action, plan administrators are under no obligation to take any action. There will be no pension advisory committee in that case. But if a request is made by a union, or by at least ten members of a plan (including retirees), the new rules will be triggered. The rules set out a clear and detailed process to communicate the request with all plan members, distribute materials and conduct a vote.

If the majority of plan members decide to establish an advisory committee, the plan administrator is then required to do several things, including:

hold the initial meeting,

give the committee or its representative “such information as is under the administrator’s control and is required by the committee or its representative for the purposes of the committee”,

make the plan actuary available to meet with the committee at least annually if the plan provides defined benefits,

ensure that the committee has access to an individual who can report on the investments of the pension fund at least annually, and

provide administrative assistance to the committee.

The pension advisory committee will not have any legal authority to dictate how the plan should be administered. The new legislation says simply that “[T]he purposes of an advisory committee are (a) to monitor the administration of the pension plan; (b) to make recommendations to the administrator respecting the administration of the pension plan; and (c) to promote awareness and understanding of the pension plan.”

Reasonable costs related to the establishment and operation of the committee are payable out of the pension fund.

Please contact a member of the Pension, Benefits and Executive Compensation group at Dentons Canada LLP for more information about this potentially significant change to the governance of Ontario registered pension plans.

Yesterday the federal government tabled Bill C-26, which will implement changes to the Canada Pension Plan that were announced in June, 2016. All provinces other than Quebec are now on board, in support of increased employer and employee contributions, and higher benefits. The higher contribution rates will not apply until January 1, 2019. They will be phased in gradually over seven years (from 2019 to 2025).

Commentators refer to these changes as “historic”. It has been decades since significant changes were made to the CPP. The reality is that the Canadians who should be happiest about these changes are teenagers, since it will be many years until significantly higher benefits are paid from the CPP.

We will be providing more details about the CPP changes in the coming weeks.

Ontario is on the verge of implementing new rights for members of registered pension plans. Members will have the right to form committees that will have broad rights to review information about all aspects of plan administration including investments. Employers who sponsor or administer a registered pension plan should familiarize themselves with these new Ontario legal requirements. They are not yet law, but likely will be in a matter of months.

Last week the Ontario government released revised draft regulations about these new legal requirements, seeking comments by September 12th, 2016. The new requirements have been kicking around in draft for the past six years and will replace current Ontario legislation regarding member advisory committees. Most employers probably haven’t heard of the current requirements regarding such committees, because the current rules have no teeth. The new ones will. You can find the new requirements here.

The new requirements will apply to pension plans that have at least 50 members (including retirees). For those plans, if 10 members (or their union) notify their plan administrator of their desire to form a member advisory committee, a process must be launched to inform all plan members and conduct a vote. If a majority of members vote in favour of establishing an advisory committee, it should be established in a matter of months. The plan administrator will have no right to representation on the committee. Reasonable expenses of the committee are payable from the pension fund.

Once a new committee is formed, the plan administrator must:

arrange for the plan actuary (for defined benefit plans) to meet with the committee at least annually;

give the committee access, at least annually, to an individual who can report on the plan’s investments; and

give information to the committee, and allow it to examine the plan records.

These new legal requirements will not give plan members a say on how their plan should be administered, but they certainly will change the landscape of members’ access to information about their pension plan. The new requirements will come into play only where there is sufficient interest among members, or unions, in forming a member advisory committee.

These new Ontario rules will create an entirely new type of scrutiny of pension plan administration. Prepare now.

I recently wrote about the legal risks regarding plan fees that should be considered by Canadian employers who sponsor group registered retirement savings plans and defined contribution pension plans (that article can be found here). These risks have been emphasized by several lawsuits filed against U.S. employers in the last few months. The following is a brief update on litigation activity in the U.S. which should give pause to Canadian employers who sponsor capital accumulation plans for their employees.

This week, no fewer than seven high-profile U.S. universities were sued regarding fees charged in their defined contribution retirement plans. Plaintiffs are seeking class-action status against these U.S. educational institutions alleging, among other things, that their employers acted imprudently by selecting high-cost funds for the plans when lower-cost alternatives were available. These lawsuits are part of a trend that has emerged in the last decade: claims against large and small U.S. employers which allege that fees haven’t been adequately disclosed, service providers are being paid unreasonable fees for the services they provide, and insufficient diligence has been carried out to properly select reasonably-priced funds and monitor whether fees remain competitive for years after funds are selected.

Some commentators have referred to this trend as a gold rush for lawyers. Several very large, respected U.S. companies have settled claims for tens of millions of dollars, while at the same time asserting that they have acted prudently in charging plan fees for administration, record-keeping and investment services.

The spate of U.S. litigation should prompt Canadian employers to mull over the following obvious questions: Do plan fees hold up against a benchmark of fees charged by other plans? Could the same services be provided at a lower price? Has the employer conducted, and kept records of, regular reviews of fee options? Was expert advice obtained in selecting funds and negotiating with service providers and investment managers? Consider this wording in a very recent claim against a small U.S. employer:

“Defendants had a flawed process – or no process at all – for soliciting competitive bids, evaluating proposals with respect to services offered and reasonableness of fees for those services, actively monitoring the reasonableness of fees assessed to Plan participants, and choosing a service provider on a periodic, competitive basis.”

Could all Canadian employers defend such allegations – especially those who have not paid attention to the fees charged in their plans for a few years? They may mistakenly think that their trusted service provider will inform them if fees could be reduced. That may not be the legal obligation of a service provider. And it may not be in the financial best interests of service providers to do so.

The Ontario pension regulator has formally encouraged pension plan administrators to shine a light on fees. It stated in a 2016 guideline that it expects employers who sponsor defined contribution pension plans to give “due consideration” to including wording in statements of investment policies and procedures that sets out “expectations, ranges, or limits on total plan expenses and fees; and guidelines for monitoring expenses and fees”. Good advice, especially in light of the litigation on this topic in the U.S.

HR professionals often ask us how to deal with pension issues when they structure severance packages for non-union employees. Should employees continue to earn pension benefits after termination of employment? If so, for how long?

Is there anything in writing? Is there a written employment contract, collective agreement, plant closure agreement or other document that clearly describes what will happen to pension benefits when the employee is dismissed? If the answer is yes, follow the written document. If the answer is no, read on.

The statutory notice period? Easy. In Ontario, employment standards legislation requires pension accruals to continue during the period of statutory notice. For both defined benefit and defined contribution pension plans, the employee should be given credit and contributions in the pension plan for that period. The challenge is what pension treatment should apply at the end of the statutory notice period. Read on.

What about pension benefits during the period of common law notice? A period of common law notice could extend for several months after a statutory notice period ends. Courts have said that long-service, highly-paid employees who are terminated without legal “just cause”, could be entitled to a period of common law notice as long as two years. The general rule is that an employee who is dismissed without cause is entitled to the value of the pension benefit that he/she would have received if he/she had worked for the entire period of common law notice. The general rule won’t apply if there’s something in writing that provides for some different treatment – an employment contract, collective agreement, binding policy, etc.

If the general rule applies, the dismissed employee’s entitlement is to the value of the pension that he or she would have earned in the pension plan during the period of common-law notice. When dealing with a defined benefit pension plan, the amount of contributions is not the same as the value. Advice of an actuary may be required to determine the value of a defined benefit pension accrual during a common law notice period. It could be easier and less expensive for an employer to set up severance arrangements so that pension accruals continue in the pension plan, rather than pay a separate cash amount equal to the value of the pension accrual.

Are employers required by law to continue pension benefits through the entire period of common law notice? If the general rule applies, that doesn’t mean that the dismissed employee must receive the value of pension benefits for the entire period of common law notice. Employees can agree to some other deal. A dismissed employee could sign a release and accept a severance arrangement that doesn’t include the accrual of pension benefits through the period of common law notice (as long as all statutory obligations are met). That is legally acceptable, as long as the treatment of pension benefits is clear in the documentation, and the employer has acted appropriately in disclosing the pension issues to the employee.

How should an employer disclose pension issues when negotiating a severance deal? Carefully. Pension legislation requires an administrator of a pension plan to act as a fiduciary when explaining pension entitlements under the plan. That includes a situation where a dismissed employee is considering pension issues in the context of a severance package. Severance letters often say something like, “you will receive pension information under separate cover”. If the employer is seeking a release at that point, the release may be challenged in future if the dismissed employee later says that he or she didn’t understand how his pension was being handled under the severance arrangement. The better approach is to deal with the treatment of pensions up front, in the initial severance letter that sets out all payment terms.

Exactly what are the options in dealing with pensions during a severance period? The easy point is that in Ontario accruals continue, without exception, during the statutory notice period. The more difficult point is what should happen with pensions after the end of the statutory notice period. There are two basic choices. Pension accruals could cease at the end of the statutory notice period, in which case the dismissed employee simply receives his or her pension termination option statement. Alternatively, pension accruals could continue for the period of time when the dismissed employee is still considered to be an employee for tax purposes. The key here is that the status of being employed for pension accrual purposes can continue even if the individual does not report to work. A severance deal can be structured so that for tax purposes, the individual’s employment has not terminated at the end of the statutory notice period. Such arrangements are commonly referred to as “salary continuance arrangements”. The individual’s salary and some benefits continue during the salary continuance period, without interruption, even though the employee no longer comes to work. The employer doesn’t provide a Record of Employment until the end of the salary continuance period. Documentation must be clear in confirming with the dismissed employee exactly what is happening with his/her benefits. And the employer should be aware of what is permitted regarding benefit accruals/continuation in the relevant benefit plan text.

It is often simpler, and less expensive, to provide for continuing pension plan accrual within the pension plan during a period of salary continuance, rather than wrestle with the issue of a cash payment to compensate the dismissed employee for loss of pension accruals during a severance period.

The bottom line for employers with pension plans is that a proper structuring of a severance package requires thought beyond the question of “how many months is this employee entitled to?” There could be an expensive pension issue that employers should address at the outset. Should the pension accruals continue throughout the salary continuance period? Would it be easier and less expensive to simply provide a cash payment in lieu of pension accruals? Has the dismissed employee been given clear and complete information about what his/her pension rights are in connection with his/her severance deal? Employers should have solid answers to these pension questions before terminating employees.

Get legal advice. We strongly recommend that employers get legal advice when dismissing employees. Circumstances can vary, and there may be important exceptions and unique approaches to the principles described in this article.

Media coverage about the Ontario Retirement Pension Plan (ORPP) has been unrelenting for the past two years. The Ontario government has made many announcements setting out its vision for its new, government-run defined benefit pension plan for Ontario employees which will be similar to the Canada Pension Plan (CPP).

Are you finding it hard to keep track? Here is an up-to-date guide. More details are in the articles listed at the end of this guide.

When is the ORPP coming into effect?

The Ontario government recently changed the effective dates. It’s likely that the following schedule is final.

Employers who had an active registered pension plan on August 11, 2015, are exempt until January 1, 2020. It doesn’t matter if their existing plan does not currently qualify as “comparable” under the ORPP rules. It doesn’t matter if their existing pension plan doesn’t apply to all of their employees. All of those lucky employers have until January 1, 2020 to decide how to react to the ORPP.

All other employers of Ontario workers will be required to start making contributions to the ORPP on the following dates, unless they adopt a “comparable” registered pension plan:

January 1, 2018 if more than 50 employees; and

January 1, 2019 if 50 or fewer employees.

What types of pension plans will qualify as “comparable”?

The Ontario government has not budged from its position that group registered retirement savings plans do not qualify as “comparable”. It is now certain that Ontario employers who offer only a Group RRSP, deferred profit sharing plan or other type of non-pension savings plan, will have to either change their plans, or join the ORPP.

See the links at the end of this guide for details of what registered pension plans do qualify as “comparable.” Beware: this is not a simple, blanket exemption. Every registered pension plan will have to be closely examined to ensure that it perfectly complies with the details of what the Ontario government deems to be “comparable”. Does your registered pension plan have a waiting period for plan entry or service caps? Are there classes of employees who are not required to join your plan (e.g. certain fixed-term, contract, call-in or other classes of permitted excluded employees)? If the answer is yes, not all of your employees will be members of a “comparable” plan for ORPP purposes. Those employees will need to join the ORPP, while your other employees will not.

The ORPP Administration Corporation will soon start communicating with employers to confirm their enrolment date in the ORPP, and to verify which employers have “comparable” plans and are therefore exempt.

Is the ORPP now law?

Yes. In 2015 a very brief piece of legislation was adopted without many specifics. On April 14, 2016 the Ontario government released Bill 186, the Ontario Retirement Pension Plan Act (Strengthening Retirement Security for Ontarians), 2016. It is 50 pages of legislative details about the new regime. More details have been promised in regulations that will be released in the summer of 2016.

Will it go away if the Canada Pension Plan is enhanced?

Don’t count on it. Federal, provincial and territorial finance ministers will be meeting in June of 2016 to discuss possible changes to the CPP. It’s a long and uncertain political road to get to an enhanced CPP. It may never happen. Meanwhile, the Premier of Ontario has repeatedly said that the Ontario government is pressing ahead with the ORPP.

What’s new?

The recent introduction of Bill 186 in the Ontario Legislature (on April 14, 2016), with all of its detailed rules about the ORPP, is exciting for lawyers. Details in the Bill include a regime for enforcement, guidelines for the collection of personal information, unsurprising points about the treatment of pensions earned under the ORPP on marriage breakdown, death, and so on. Many of these details are not new, so the Bill is less exciting for employers.

One interesting new detail in the Bill applies to directors of corporations. If they receive a “stipend or remuneration” for their service as a director, they will be subject to the ORPP unless an exemption applies.

Want more information?

Contact any member of the Dentons Canada pension group, or click on the following links:

Employers who sponsor retirement and savings plans for their employees should ensure that the fees paid by their employees within the plans are reasonable and adequately disclosed. Lawsuits in the U.S., and a recent regulatory undercover investigation in Canada, serve as a reminder of the risk of employer liability regarding fees. This article will describe the risks for Canadian employers, and suggest a few simple things that can be done to reduce those risks.

What kinds of plans expose employers to the risk of claims over fees?

The kinds of employer-sponsored plans at issue here are workplace plans known as “CAPs”, meaning “capital accumulation plans”. These are plans that do not promise a defined benefit pension. Instead, they provide an individual account for each employee, where contributions are made by the employees, the employer, or both. CAPs sponsored by employers include defined contribution registered pension plans, Group RRSPs (group registered retirement savings plans), deferred profit sharing plans, non-registered savings plans and tax-free savings accounts.

The employer selects a service provider and the line-up of investment funds to be offered in the CAP. Employees decide which investment funds they want their account balances to be invested in.

It is common for the costs of the plan to be paid by way of fees charged to the investment funds and accounts of the employee members. It is also common for employers to rely on the service-providers they have hired to describe to their employees what the fees are.

Exactly what are the legal requirements?

The legal obligation of employers regarding fees is not set out in detail in legislation. For registered pension plans, generally speaking, there are broadly-worded legislative requirements that employers who sponsor defined contribution registered plans act prudently. There is little detail in pension legislation as to exactly what that means, with respect to fees paid by plan members.

Eleven years ago a significant document was issued by three Canadian regulators who have jurisdiction over various aspects of CAPs. The 2004 document, known as the “CAP Guidelines,” says that employers should ensure that employees are provided with a description and amount of all fees and expenses that are borne by the members, including investment fund management and operating fees, record keeping fees and fees for services provided by service providers.

The regulators stated in the CAP Guidelines that fees can be disclosed to plan members on an aggregate basis, “provided the nature of the fees, expenses and penalties is disclosed”. This means that it is not sufficient to refer in broad terms to an approximate amount of total fees that members will be charged for a vague summary of services. Rather, there should be a description of what kinds of services are being provided for a fee, what kind of a fee is being charged (a flat fee per participant? a percentage of assets?), who is providing the service, and how much those services cost.

Regulators have not stood still on the issue of fees since the 2004 CAP Guidelines were released. A few weeks ago the Ontario pension benefits regulator issued a draft guidance note for public comment. The draft states that statements of investment policies and procedures for registered pension plans should include a description of fees, including: “which expenses and fees will be paid by the employer and which will be borne by plan members; expectations or limits on total plan expenses and fees; and guidelines for monitoring expenses and fees”. It is likely that this draft guidance note will be issued in final form in the near future.

Secret regulatory probe into investment fees

In an undercover operation, three Canadian investment regulators sent 105 mystery shoppers to a variety of vendors of investment products such as mutual funds. The operatives posed as potential individual investor clients, and reported their experiences to the Ontario Securities Commission, the Investment Industry Regulatory Organization of Canada and the Mutual Fund Dealers Association of Canada. The regulators released their findings on September 17th, 2015.

The results of the investigation were troubling. Only 25% of the mystery shoppers were told how the vendor of the investment would be compensated. And only 56% of them were told anything at all about the fees associated with the investment products they were offered. Where fees were disclosed, more than one-third of the shoppers were given inadequate information about fees.

The investigation uncovered proof that many investment advisors are not properly disclosing fee information to individual investors. The probe did not examine employer-sponsored retirement and savings group plans. Nevertheless, the results of the investigation should prompt employers to confirm that their employees are getting appropriate information about the fees they are paying in their workplace retirement and savings plans.

Employers sued in the U.S. over fees

Dozens of lawsuits have been filed in the U.S. against employers in the past few years regarding fees charged to employees in workplace retirement plans. Allegations included claims that service providers were receiving “revenue sharing” payments, fees were excessive because the plan sponsor had selected actively managed mutual funds as plan investment options when identical, less expensive institutional funds were available, fees were improperly allocated among participants, service providers should not be paid fees based on a percentage of assets, and fees were “hidden”. Several high-profile cases were settled on the basis that employers agreed to pay amounts to plan members, and to change to the structure and disclosure of fees going forward.

What’s an employer to do?

Review the fees. Benchmark them against fees charged in other employers’ plans; your service provider should have access to that industry information. Are they equitably allocated among participants? Are any service providers getting a percentage of assets when a less expensive, fixed fee is available in the marketplace?

Disclosure, disclosure, disclosure. Ensure that information about the fees appears prominently in communications to your employees. Can employees see who gets their money, and what services they receive for their fees?

Statement of Investment Policies and Procedures. If you have a policy, or governance guideline of some kind relating to your CAP, include a description of the type and amount of fees charged, and how the fees are allocated among the various players (investment managers, record keepers, auditors, consultants, etc.).

Get it in writing. Ask your service provider, or consultant, to confirm in writing that the fees are reasonable, and properly disclosed. Ask for that comfort at least annually.

Employers rarely play a role in negotiating and disclosing fees charged to employees in their retirement and savings plans. Employers usually rely on their service provider to do so. Given the spate of lawsuits in the U.S., and the results of the recent regulatory undercover operation in Canada, it would be prudent for Canadian employers who sponsor CAPs to periodically review the information provided to members of their CAPS, in order to ensure that fees are reasonable, and that complete information about fees is being provided.

Employers that provide registered pension plans to their Ontario employees should review their Statement of Investment Policies and Procedures (“SIPPs”) within the next few months. New Ontario SIPP requirements are coming into force: SIPPs will have to be filed with the Ontario pension regulator, and they will have to address new issues described below.

Electronic filing of SIPPs with the Ontario regulator will be mandatory in 2016. You shouldn’t assume that your pension service provider will attend to the filing for you. It’s the legal responsibility of the registered administrator of the plan – usually the employer – to ensure that the SIPP is adopted and filed on time. For most plans, the filing deadline is March 1st, 2016.

There is no change to the requirement that SIPPs be reviewed and confirmed, or amended, at least annually. If your company has not yet conducted its 2015 SIPP review, now is the time to become familiar with the new SIPP requirements and address them as part of your 2015 review. Doing so will avoid having to do another review in early 2016.

Under the new rules SIPPs must state whether environmental, social and governance (“ESG”) factors have been incorporated into the pension plan’s investment policies and procedures and, if so, how those factors were incorporated. There is no legal or standard definition of “ESG factors”. On June 30th the Ontario regulator released draft “Investment Guidance Notes” (here) which provide background information on the new rules. Notably, the regulator expects the administrator to “establish and document its own view or understanding on what is meant by ESG factors” and “consider whether or not it will incorporate ESG factors and document the basis for its decision.” The regulator expects such documentation to appear in meeting minutes or in an “internal memorandum”.

SIPPs for defined contribution (“DC”) registered pension plans will have to contain a significant amount of new information. The Ontario regulator released a separate draft “Investment Guidance Note” (here) for “Member Directed Defined Contribution Plans”. It lists eight categories of information that should be included in SIPPs for DC plans, including the requirement to disclose how investments are selected, communicated and monitored. Most interesting is the proposed requirement that the SIPP specify “the frequency and type of reporting” that the administrator will require from the plan’s service providers. The regulator provides an example: the SIPP may have a statement that quarterly reporting will be provided by the record keeper on fund performance, fund allocation, web-site usage, and other service-level statistics. This level of disclosure regarding monitoring of service providers should cause administrators to take a fresh look at how they govern their DC plans.

The Ontario pension regulator has invited public submissions on both of its draft Investment Guidance Notes. All feedback will be made public. Clickhere for information about how to comment on the drafts.

General Motors of Canada suffered a blow this summer when an Ontario court held that GM was not entitled to reduce benefits it had promised to its retired workers. The decision can be found here.

GM informed non-union retirees in 2009 that as a cost-cutting measure, GM had to reduce benefits that it had promised to certain retirees while they were employed. The reductions included significantly lower amounts of life insurance, and the elimination of semi-private hospital coverage. The retirees responded with a class action claiming that they were “stunned” by GM’s actions, and that GM’s actions were illegal. GM’s position was that language in employee booklets allowed it to make such changes. GM’s employee booklets had typical language that purported to give GM the right to make changes to all benefits, “at any time”. The Ontario Superior Court of Justice disagreed with GM’s position. The language in GM’s employee booklets wasn’t sufficiently clear, said the Court, to allow GM to impose the unilateral changes on retirees following their retirement. The Court made very helpful comments about exactly what wording in employee booklets may be effective to give an employer the legal right to reduce retiree benefits.

It is common for employers to change employee benefits promised to current, non-union employees. The considerations for terminated or retired employees are very different. The recent GM case confirms the reality that Canadian courts will likely not allow employers to unilaterally change the benefits of non-union retirees, unless the employer has communicated that possibility very clearly to the employees while they were employed.

GM has not given up the fight. It has announced that it will appeal the Court’s decision. Meanwhile, employers would be well-advised to take a look at the wording in their employee booklets and other benefit communications that says benefits can be changed in future. Will that language withstand a court challenge that it isn’t sufficiently broad or clear to allow changes to be made? The answer may lie in the reasons for judgment in the GM case and pending appeal.

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